Petition for review of decision of Federal Labor Relations Authority, which held that a federal agency did not commit an unfair labor practice under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7116(a)(1), (5) or (8), in refusing a union's request for information made pursuant to section 7114(b)(4) of that statute. Petition for review granted, decision reversed and case remanded.
Before: FEINBERG, Chief Judge, NEWMAN and MINER, Circuit Judges.
The American Federation of Government Employees, AFL-CIO (the union), petitions for review of a Decision and Order of the Federal Labor Relations Authority (the Authority), holding that the Department of Health and Human Services, Social Security Administration (the agency) did not commit an unfair labor practice under the Federal Service Labor-Management Relations Statute (the Labor Statute), 5 U.S.C. § 7116(a)(1), (5) and (8), when the agency refused to furnish information requested by the union pursuant to section 7114(b)(4) of that statute.*fn1 The decision of the Authority is published at 21 F.L.R.A. No. 35 (Apr. 14, 1986). The union argues to us that the Authority should have employed the "presumptive relevance" doctrine, and required the agency to establish that the information requested by the union was not relevant to subject within the the scope of collective bargaining. Alternatively, the union argues that the Authority erred in holding that the union did not sufficiently communicate to the agency its need for this information. We reject the union's first argument but agree with the second. Accordingly, we grant the union's petition for review, reverse the decision of the Authority and remand this case to it.
This petition involves four charges filed by the union against the agency that were consolidated and heard, on stipulated facts, by a administrative law judge (ALJ) in November 1984. The first charge involved the union's request for unsanitized copies of official time and attendance records for all employees in the agency's East New York branch office for the period of October 1, 1983 to March 13, 1984. Unsanitized documents are unedited and contain the identity of the employee who is the subject of the record or report. At this time of the request, the union represented 36 of the 42 employees in the East New York office. The second charge concerned the union's request for unsanitized copies of progress reviews and performance appraisals for all of the approximately 15 bargaining unit employees in the agency's Murray Hill branch office for the period of January 1, 1983 to March 15, 1984, Underlying the third charge was the union's request for unsanitized copies of progress reviews and performance appraisals for a group of claims representatives in the agency's Jamaica district office for the period of January 1, 1983 to March 20, 1984, at the time of that request, the union represented 104 of 115 employees in that office, including 21 or 22 claims representatives. The fourth charge involved the union's request for unsanitized copies of various documents bearing on work performance of claims representatives, including annual appraisals, desk and interview audits, quality review deficiency flags and weekly District Office Work Report (DOWR) statistics in the agency's Downtown district office for the period of January 1, 1983 to February 29, 1984. At the time of that request, the union represented approximately 75 employees in that office, including 11 claims representatives.
The commissions between the union and agency officials were substantially the same in each case. Each request for information by the union was prompted by a complaint from a bargaining unit employee who felt that he or she had been treated unfairly by the agency. For example, at the East New York office the union's request was prompted by a complaint from a bargaining unit employee who was told by her supervisor that restrictions on obtaining sick leave might be imposed upon her. The union wanted the records in order to discover sick leave patterns, determine how employees were treated concerning excessive us of sick leave and decide whether to file a grievance. In each of the four cases, the agency asked the union to supply more information concerning the issue underlying the request. In response, the union referred the agency to Article 24 of the collective bargaining agreement, which deals with the filing of grievances, section 7114 of the Labor Statute and section 7103(a)(9) of that statute, which defines the term grievance. There were not other relevant communications between the parties concerning the union's requests for information, and the agency never provided the union with the requested information.
In April and May 1984, the union filed charges against the agency, alleging that the agency had committed an unfair labor practice in each of the four cases when it refused to furnish information requested by the union under section 7114(b)(4) of the Labor Statute. The relevant portion of that section, see note 1 supra, requires a federal agency to furnish to the union, upon request, information that is" reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." In March 1985, the ALJ dismissed all four of the union's complains, concluding that the union had not conveyed to the agency its reasons for requesting the information and that the union's need for the information was not otherwise apparent from the circumstances. The ALJ also found that even if the union had satisfied the requirements of section 7114(b)(4), it has not offered sufficient information to permit the agency to determine whether disclosure was allowed under the Privacy Act, 5 U.S.C. § 552a.
In April 1986, the Authority adopted the ALJ's findings and conclusions and affirmed his rulings that the union had not sufficiently justified its requests for information under section 7114(b)(4). Because of this holding, the Authority found it unnecessary to consider the ALJ's resolution of the Privacy Act issues.*fn2 This petition for review followed.
The union argues that the Authority should have employed the "presumptive relevance" doctrine and required the agency to establish that the information requested by the union was not relevant to subjects within the scope of collective bargaining. The "presumptive relevance" doctrine was apparently first enunciated by Guy Farmer, then-Chairman of the National Labor Relations Board (the Board), in a concurring opinion in Whitin Machine Works, 108 N.L.R.B. 1537 (1954), enf'd, 217 F.2d 593 (4th Cir.), cert. denied, 349 U.S. 905, 75 S. Ct. 583, 99 L. Ed. 1242 (1955). In that case, the Board held that Whitin Machine Works had violated section 8(a)(5) of the National Labor Relations Act by failing to furnish the union with certain wage data concerning employees represented by the union. Chairman Farmer wrote:
I would not require that the union show the precise relevancy of the requested information to particular current bargaining issues. It is enough for me that the information relate to the wages of fringe benefits of the employees. Such information is obviously related to the bargaining process, and the union is therefore entitled to ask and receive it.
I am convinced, after careful consideration of the import of the problem and the collective-bargaining process, that this broad rule is necessary to avoid the disruptive effect of the endless bickering and jockeying which has theretofore been characteristic of union demands and employer reaction to requests by unions for wage and related information.
108 N.L.R.B. at 1541. The union argues that the Authority has applied this test in the past and that, in any event, it erred by refusing to give the union ...